1) BURNING A MEZUZAH TOGETHER WITH THE REST OF AN "IR HA'NIDACHAS"
QUESTION: The Gemara (112b) cites a Tosefta that discusses the procedure for the proper disposal of various types of consecrated items that were in the possession of the people of an Ir ha'Nidachas. The Tosefta states that Kisvei ha'Kodesh, holy writings, should be hidden away (in "Genizah"). The Gemara here states that this Beraisa is not in accordance with the view of Rebbi Eliezer. Rebbi Eliezer maintains that if there is a single Mezuzah in the city, the city cannot be punished as an Ir ha'Nidachas, because the verse says that all of the possessions of the city are to be gathered and burned. Burning a Mezuzah is forbidden because of the verse "Lo Sa'asun Ken" (Devarim 12:4), and thus the law of an Ir ha'Nidachas cannot be fulfilled in such a city. (See Insights to Sanhedrin 71a.)
Why, according to Rebbi Eliezer, should the prohibition of burning a Mezuzah prevent the burning of the Mezuzos of an Ir ha'Nidachas? There is a Mitzvas Aseh to burn the possessions of an Ir ha'Nidachas (Devarim 13:17), and the rule is that an Aseh overrides a Lo Sa'aseh -- "Aseh Docheh Lo Sa'aseh." Hence, the Mitzvas Aseh to burn the city should override the Isur against burning a Mezuzah. (REBBI AKIVA EIGER here, and TORAS CHAIM to 71a)
(a) The MARGOLIYOS HA'YAM cites the PRI HA'SADEH (2:2; see also LIMUDEI HASH-M #4) who explains that the Mitzvas Aseh to burn the city is fulfilled only when the entire city is burned. The Isur against burning a Mezuzah is transgressed before that moment. Since the fulfillment of the Mitzvah is not done at the same time ("b'Idnei") as the transgression of the Lo Sa'aseh, the Aseh cannot override the Lo Sa'aseh (as the Gemara states in Shabbos 132b).
However, this answer does not suffice according to the words of the NIMUKEI YOSEF in Bava Metzia (30a). The Nimukei Yosef proves from the Gemara there that the principle of "Aseh Docheh Lo Sa'aseh" should apply to permit a Kohen to enter a cemetery to fulfill the Mitzvah of retrieving a lost object, if not for the fact that the prohibition of a Kohen entering a cemetery involves an Aseh and a Lo Sa'aseh. Why would it have been permitted if entering a cemetery would have been prohibited only because of a Lo Sa'aseh? The Kohen transgresses the Lo Sa'aseh (entering the cemetery) before he fulfills the Aseh (returning the lost object)! The Nimukei Yosef answers that the Mitzvas Aseh involves all of the actions that the Kohen must do in order to retrieve the lost object. Since his first step into the cemetery is part of the fulfillment of the Mitzvah, it is considered "b'Idnei," done at the same time as the Mitzvah, even though the Mitzvah is not completely fulfilled until after the object is returned to its owner. The same principle should apply in the case of the Gemara here to permit the burning of the Mezuzah since it is part of the possessions of the city, even though it will take some time before every last possession in the city will be burned.
(b) The MARGOLIYOS HA'YAM suggests that perhaps an exception to the principle of "Aseh Docheh Lo Sa'aseh" applies here. The Gemara in Zevachim (97b) learns from a verse that the principle of "Aseh Docheh Lo Sa'aseh" does not apply with regard to eating the meat of Korbanos (for example, breaking bones of a Korban Pesach in order to eat the marrow), because "an Aseh is not Docheh a Lo Sa'aseh in the Mikdash." Perhaps the same is true with regard to burning the Holy Name of Hash-m; because of its Kedushah, an Aseh is not Docheh the Lo Sa'aseh of burning the Shem Hash-m. (See also IGROS MOSHE OC 1:4-6.)
This argument, however, is weak, because the Gemara in Zevachim does not relate its rule to the Kedushah of the Lo Sa'aseh in the Mikdash. Rather, it seems to be a general rule that applies in the location of the Mikdash, rather than a reflection of the importance of a particular Lo Sa'aseh in comparison to the Aseh that would override it. The Lo Sa'aseh of breaking a bone in the Korban Pesach, for example, does not seem to be related to the Kedushah of the Mikdash.
The MESHECH CHOCHMAH (end of Parshas Ekev) also proposes that there is a verse which teaches that the rule of "Aseh Docheh Lo Sa'aseh" does not apply to burning the Mezuzos of an Ir ha'Nidachas. However, he contends that the verse is not the one that the Margoliyos ha'Yam quotes from Zevachim (which applies only to the Mikdash), but rather the verse in Devarim (12:4) which states, "You shall demolish their altars... and destroy the name of Avodah Zarah.... Do not do that to Hash-m." Raban Gamliel asks (in the Midrash; see Rashi), "Would we ever suspect a Jew, Chas v'Shalom, of destroying the altar of Hash-m, that the verse must warn us not to do such a thing?" He does not reveal his answer to his question. Perhaps his answer is that the verse intends to prohibit destroying an altar (or Mezuzah) even when there is a Mitzvah to destroy it, such as when it is in an Ir ha'Nidachas! The verse, then, is specifically teaching that the Mitzvah to burn an Ir ha'Nidachas does not override the Lo Sa'aseh in this case.
However, there is no source for such a Derashah in the Gemara or Midrash, so it is somewhat forced to suggest that the Gemara here relies on such an unwritten Derashah.
(c) RASHI here seems to have been bothered by this question. Rashi (DH di'Chesiv) first explains that a Mezuzah of an Ir ha'Nidachas may not be burned because the Torah prohibits the burning of the Holy Name (as the Gemara says). Rashi then adds, "The Torah requires that we burn the personal possessions of the city ('Shelalah'), and a Mezuzah is not a personal possession. It is a Heavenly possession ('Shelal Shamayim')."
REBBI AKIVA EIGER questions Rashi's explanation. Why does Rashi need to add this last phrase? It would suffice to say merely that the Torah prohibits destroying a Mezuzah! The MARGOLIYOS HA'YAM answers that Rashi's intention is to answer why the Mitzvah of burning the Ir ha'Nidachas does not override the prohibition against burning the Holy Name. His answer is that the Torah does not command that the Mezuzos of the Ir ha'Nidachas be burned in the first place. Since there is no Mitzvah to burn the Mezuzos, there is no Aseh to override the Lo Sa'aseh!
This answer, however, is insufficient. If the commandment to burn the city does not include burning the Mezuzos, how can it be inferred from the verse that the laws of an Ir ha'Nidachas apply only to a city that has no Mezuzos? Even if the city has Mezuzos, perhaps the Torah commands to burn everything else in the city, but not the Mezuzos (which are to be removed to safety). The Torah commands to burn only "Shelalah," and a Mezuzah is not in the category of "Shelalah" and thus the Torah does not require that it be burned! (REBBI AKIVA EIGER ibid.; see the Margoliyos ha'Yam's attempt there to avoid this question. See also ARUCH LA'NER there for an entirely different explanation of the intention of Rashi.)
(d) A number of Acharonim suggest that burning the Holy Name is prohibited not only by a Lo Sa'aseh, but it is prohibited with a Mitzvas Aseh as well. The rule that "Aseh Docheh Lo Sa'aseh" does not apply when the Lo Sa'aseh is accompanied by a Mitzvas Aseh. In such a case, the rule is that an Aseh does not override a Lo Sa'aseh that is enforced with an Aseh.
What is the Mitzvas Aseh which prohibits burning the Holy Name? It is either the Mitzvah of "v'Ahavta Es Hash-m" (SANHEDRI KETANAH), the Mitzvah of "Es Hash-m Elokecha Tira" (ACHIEZER 2:48:2; BEIS MEIR; KOMETZ L'MINCHAH of the Minchas Chinuch, Mitzvah #69), or the Mitzvah of "v'Ibadtem Es Shemam," which requires that the names of Avodah Zarah be destroyed and includes the implication that one may not destroy the name of Hash-m (ARUCH LA'NER 113a).
2) THIEVES ARE "RESHA'IM"
QUESTIONS: The Mishnah (111b) expounds the verse, "Nothing from the prohibited property shall remain in your hands" (Devarim 13:18). The Mishnah explains that the verse is teaching that as long as there are Resha'im in the world, there is Heavenly wrath in the world.
The Gemara here asks, "Who are these Resha'im?" Rav Yosef answers that the Mishnah refers to Ganavim, thieves.
The Gemara is difficult to understand.
1. What does the Mishnah see in the verse that implies that it refers to the wrath of Hash-m that exists as a result of the Resha'im in the world?
2. How does Rav Yosef know that the Mishnah refers specifically to thieves and not to other types of Resha'im?
3. Why does the Gemara ask in the first place what type of Resha'im the Mishnah is discussing? Why is the Gemara not content with assuming that the Mishnah refers to all Resha'im?
(a) The BE'ER SHEVA writes that Rav Yosef was bothered by the fact that the Mishnah and the Sifri give two different interpretations of the verse. The Sifri explains that the verse teaches that as long as Avodah Zarah exists in the world, there will be Heavenly wrath in the world. The Sifri's interpretation of the verse seems more straightforward, because the verse is discussing the Mitzvah to burn the possessions of the Ir ha'Nidachas, the city that worshipped Avodah Zarah. It makes sense that the verse means that Hash-m's wrath is removed from the world when the city's idols are destroyed. It is less logical to assume that the verse means that Hash-m's wrath is removed from the world by ridding the world of Resha'im.
Rav Yosef explains the Mishnah's understanding of the verse. The thieves who steal the possessions of the Ir ha'Nidachas before they are burned prevent the removal of the reminders that an entire city of Jews worshipped Avodah Zarah. As long as these possessions are extant, Hash-m's anger remains in the world. This is how Rav Yosef learns that the Mishnah is referring to thieves.
(b) The EINEI SHMUEL explains the Mishnah and Rav Yosef's explanation of it based on the Zohar. The Zohar (131:4) states that when the Shechinah is concentrated in this world, Hash-m's trait of "Erech Apayim," slow to anger, is manifest in the world. When the Shechinah is not concentrated in this world, the Mal'ach of "anger" is allowed to reign. The Gemara in Bava Kama (79b) explains why one who steals secretly (a "Ganav") is punished more severely than one who steals openly and brazenly (a "Gazlan"). A Gazlan does not care what others think of him; he does not try to hide his actions from people more than he tries to hide his actions from Hash-m. In contrast, a Ganav, who steals clandestinely, shows that he is concerned that others not see him steal, but that he is not concerned that Hash-m not see him steal.
Based on the Zohar and the Gemara in Bava Kama, it follows that a thief who steals in such a way that he makes a statement that Hash-m's presence is not in this world is punished, measure for measure, in that Hash-m removes His presence from the thief's world, and this leaves the Mal'ach of wrath free to deal with him. This is how Rav Yosef knows that when the Mishnah says that Resha'im bring wrath into the world, it refers to thieves. (Y. MONTROSE)